Rules of Intestacy
No will or invalid will
If a person dies without making a will or if a will is not legally valid, their goods, property and possessions (their estate) will be divided according to specific legal rules, the Intestacy Rules, irrespective of who the deceased would have wanted to inherit their estate. This is one reason why making a will is so important.
The Intestacy Rules confirm that where a person dies intestate, their estate will be distributed as follows:-
No surviving issue (the term ‘issue’ means lineal descendants such as children and grandchildren. It does not include stepchildren but does include adopted children):
The surviving spouse/civil partner will take the estate absolutely. See Jointly Owned Assets.
Spouse/Civil Partner and Issue
- Personal chattels (s55(1)(x) Administration of Estate Act 1925).
- A statutory legacy of £322,000 free of tax and costs. Interest will be payable on this gift from the date of death until payment is made.
- 50% of the remaining residuary estate absolutely
- 50% of the residuary estate immediately
No surviving spouse/civil partner but there is issue
The estate will be divided equally between the deceased’s children but if any children have predeceased, their issue will be entitled to the share that their parent would have taken had they survived.
If there is no spouse/civil partner and no issue the estate will pass in the following order:
- Parents – equally if both alive or to the survivor absolutely
- Brothers and sisters of the whole blood and the issue of such brother and sister who have predeceased the deceased
- Brothers and sisters of the half hood and the issue of such of such brother and sister who have predeceased the deceased
- Grandparents – equally if more than one or to the survivor absolutely
- Uncles and aunts of the whole blood or their issue if any have predeceased the deceased
- Uncles and aunts of the half blood or their issue if any have predeceased the deceased
Points to note:
A divorced person will not automatically inherit under the rules.
A spouse/civil partner who is separated but not divorced can still inherit under the rules.
Cohabiting partners (sometimes known ‘common-law’ spouses) who were neither married nor in a civil partnership cannot inherit under the rules.
Any property held jointly will not pass under the intestacy rules and will instead pass under the rules of survivorship
A child whose parents are not married or have not registered a civil partnership can inherit from a parent who dies intestate under the rules. These children can also inherit from grandparents or great-grandparents if they have died intestate.
Adopted children including step-children who have been adopted by their step-parent have rights to inherit but otherwise you have to be a biological child to inherit.
Children will gain a vested interest in their inheritance when they reach 18 or marry or form a civil partnership under the age of 18.
There is no right for the following people to inherit under the rules of intestacy:
- unmarried partners;
- lesbian or gay partners not in a civil partnership;
- relations by marriage;
- close friends; and
However, those who cannot inherit under the rules of intestacy may be able to apply to court for financial provision from the estate.
If you are not a surviving relative and believe you may be entitled to a grant you should obtain legal advice.
Sharing property without a will
It is possible to rearrange the way property is shared out under the intestacy rules. This can be done by making a deed of family arrangement or deed of variation within two years from the date of death. In order to make provisions using these instruments, anyone that stood to inherit under the intestacy rules, must agree to its terms.
You may be able to apply to the court of the person who has died intestate for reasonable financial assistance in various circumstances. For example, if you lived with the person who has died for at least two years before their death but were not married to them, you would not inherit under the rules. However, you could apply to court for reasonable financial assistance. Another example would be if you were always treated by the person who died as a child of the family.
An application for financial assistance must be made within a certain time limit although in some limited circumstances this can be extended.
The court may order regular payments from the estate, a lump sum payment from the estate, or property to be transferred from the estate.